Antenuptial Contracts - deciding whether to enter into one

• In South Africa the following matrimonial property regimes are provided for and can be selected from to govern a marriage between persons:
  • In community of property;
  • Out of community of property with application of the accrual system; and
  • Out of community of property without application of the accrual system.
• A marriage in community of property is the regime which will apply if no antenuptial contract is concluded. The effect of this regime is that the estates of the persons to be married will merge into one estate following marriage. All assets and liabilities which the parties individually held and which the parties will acquire are shared equally.
• A marriage out of community of property is the regime which will apply if an antenuptial contract is concluded. The effect of this regime is that the estates of the parties are kept separate following marriage. All assets and liabilities which the parties individually held and which the parties acquire will be held individually, unless the parties decide to hold them jointly.
• When parties elect the out of community of property regime, a further election is necessary which is whether the accrual system will have application. If the accrual system has application then the party whose estate has accrued less upon termination of the marriage (death or divorce) will be entitled to claim from the party whose estate has accrued more, half of the difference between the accrual of each respective estate.
• An antenuptial contract is usually concluded before marriage in the presence of a qualified Notary Public. The Notary Public will seal the contract and arrange for the registration of the contract in the Deeds Office of South Africa.
• The type of regime which is suitable differs depending on circumstances such as the nature of the relationship between the persons (their age at marriage and whether they already have dependents), the status of their respective estates (established or start up), plans for their future as a couple (will both or one foster a career) and prospects of their respective careers.

We have the ability and expertise to advise our clients with further detail in this regard and specifically in relation to their circumstances; to draft as well as arrange registration of antenuptial contracts; and to advise on the related aspect of estate planning which will be affected by the type of regime which governs a marriage in the event of death. Where the advice our clients seek is of a financial nature, we are able to refer our clients to appropriately qualified consultants who we can work with to ensure that our clients are in a position to make informed decisions before marriage.

For more information and advice on antenuptial contracts, please contact Shelby Lubbe-Roberts at shelbyr@rushmere.co.za

Disclaimer

This article is not intended to provide legal advice; it is for information purposes only and to provide a general understanding of the law.  It is advisable that advice relating to the specific circumstances of your matter be sought from an attorney before acting upon the content of this article.  This article is written at a particular point in time and accordingly may not always reflect the most current legal developments, legislation and/or judgments which may be applicable from time to time. The author and/or Rushmere Noach Incorporated are not responsible for any conduct taken contrary to that which is disclaimed herein.